About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2016
>>
[2016] ZANCHC 17
|
|
Barends v S (R104/09) [2016] ZANCHC 17; 2017 (1) SACR 193 (NCK) (9 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Case
No: CA&R 104/09
Heard:
08/08/2016
Delivered:
09/09/2016
Reportable:
Yes
Circulate
to judges: Yes
Circulate
to magistrate: Yes
Circulate
to Regional Magistrates: Yes
In
the matter between:
ANDRIES
BARENDS Applicant
v
THE
STATE Respondent
Coram:
Kgomo JP
et
Matlapeng AJ
JUDGMENT
KGOMO
JP
[1]
The appellant was,
notwithstanding his plea of not guilty, convicted by the Regional
Magistrate (Upington), Mr M Viewe, on 09 March
2007 that he had the
direct intent of murdering the deceased, Mr Lebogang Solomon
Lepodise, a 21 year old man, on 06 May 2003.
He was sentenced to
serve 8 (eight) years imprisonment. Leave to appeal was sought only
in respect of the conviction and was granted
by the presiding
Regional Magistrate on 06 June 2007. The appellant was throughout
represented by Mr Tobie Kotze whereas Ms D Engelbrecht
prosecuted the
case.
[2]
THE DELAY IN
PROSECUTING THE APPEAL
The
delay in prosecuting this appeal is ascribed to the fact that
mechanical recordings/tapes/compact discs (CDs) went missing,
and
when they were eventually traced and transcribed certain portions of
the evidence were either not mechanically recorded or
the recordings
could not be retrieved or were inaudible. The defective portions of
the record have now been reconstructed to the
substantial
satisfaction or sufficient consensus of the Regional Magistrate, the
defence and the state. See: the classical judgment
of Olivier J
(Lacock J and Williams J concurring) in
S V Van Staden
[2008] ZANCHC 45
;
2008 (2)
SACR 626
(NCD)
and cases cited therein.
[3]
What could not be
accomplished though was the reconstruction of the judgment as ordered
by Mamosebo AJ (then) and Erasmus AJ on
08 June 2015 for that
assignment to be completed by 31 July 2015. The appeal was postponed
to 31 August 2015. Fast forward: On
30 May 2016 Olivier J sent a
stern directive that the definitively reconstructed judgment reach
the Registrar of this Court not
later than 30 June 2016 to serve
before the Court of Appeal on 08 August 2016. Well, this has not
happened and the frustration
persists.
[4]
The Regional Magistrate
explains as follows in paras 2-9; for his inability to reconstruct
the judgment:
“
2. Op ‘n
stadium het ek my notas tesame met my geskrewe uitspraak aan die
klerk van die hof oorhandig sodat dit getik kan
word. Dit het egter
in daardie proses verlore geraak en het ek dus nie meer my
notas tot my beskikking nie.
3. Vanwee die lang
tydsverloop kan ek nie die detail van my uitspraak in herinnering
roep nie, alhoewel die rekord van die getuienes
nog beskibaar is.
4. Ek kan wel onthou
dat daar ‘n inspeksie ter plaatse gedoen was soos dit uit die
record blyk.
5. Die toneel was
wel nie meer soos dit tydens die voorval daaruit gesien het nie maar
wat ons kon wel waarneem waar die basiese
structure (pale van die
binne heining) was uit die merke wat ons kon sien op die grond.
6. Dit was ‘n
dubbel omheinde erf bestaande uit draad heinings en afsonderlike
toegangshekke. Ek kan egter nie meer die toneel
so helder oproep nie,
alhoewel dit ‘n groot deel uitgemaak het van my uitspraak
waaran ek
die beskuldigde se weergawe getoets het en ook
uiteidelik verwerp het.
7. Ek kan my wel
herinner dat daar wel weersprekings was tussen die 3 staatsgetuies,
maar vanweë die feit dat dit ‘n
bewegende toneel was
het
ek ook bevind dat dit nie wesenlike weersprekings was nie.
8. Ten opsigte van
die beskuldigde se verweer van noodweer dat die gemeenskap hom
aangerand het, het ek dit as onwaarskynlikheid
bevind aangesien dit
nie sin maak dat die gemeenskap hom (die beskuldigde) sou aanrand
nie, terwyl die Oorledene (aldus die beskuldigde
se weergawe) die
aggressor was.
Die getuies het aangedui dat die gemeenskap die
beskuldigde met klippe bestook het na die aanrandding deur die
beskuldigde op die
Oorledene, wat die mees waarskynlike was.
9. Sedert die
aansoek om verlof tot appèl toegestaan was, is die beskuldigde
op borg vrygelaat en het dus nog nie begin om
die vonnis uit te dien
nie”.
(emphasis
added)
[5]
How the clerk of court could
so easily, not for the first time in the same case, have lost an
official document (the “geskrewe
uitspraak”) boggles the
mind. There is a sick, very sick, malady emanating from the Upington
District and Regional courts.
The Northern Cape/ Provincial
Efficiency Enhancement Committees (NC/PEEC) is dealing with this
problem and has urged disciplinary
and/or criminal consequences.
[6]
With hindsight our
colleagues’ directive to the Regional Magistrate should have
incorporated an alternative to the effect
that failing the
reconstruction of the judgment that the Magistrate, based on the
record, simply give reasons for his conviction.
This would not be
dissimilar to a District Magistrate whose records were in manuscript,
but gave an unwritten ex tempore judgment,
which is not mechanically
recorded. They only furnished written reasons/judgment upon request.
See:
Securiforce V
Ruiters:
Case No.
CA&R 64/2010 (02/12/2011): Kgomo JP (Pakati AJ(then) concurring).
At para 22 thereof the following is said:
“
[22]
I
hasten to make the following observation. When a losing party
asks for reasons for the court’s finding what is in
fact being
called for is a judgment. A proper judgment at that. I appreciate
that Magistrates have to contend with heavy court
rolls and that they
work under tremendous pressure. See
S
v Steyn
2001(1) SA 1146(CC) at 1155F-1159D (paras 13–21). The aforesaid
difficulties notwithstanding, a better judgment should have
been
produced particularly if regard is had to the wide ranging and
comprehensive argument that was presented by the legal
representatives
before the presiding Magistrate as reflected in the
transcribed record. Of note is what the applicable Rule 51(1)
provides:
“
(1)Upon
a request in writing by any party within 10 days after judgment and
before noting an appeal the judicial officer shall within
15 days
hand to the registrar or clerk of the court a judgment in writing
which shall become part of the record showing –
(a) The facts he or
she found to be proved; and
(b) His or her
reasons for judgment.”
This
situation no longer obtains in criminal cases in this province
because all judgments are mechanically recorded.
[7]
The appellant was entitled to
expeditious justice which did not come his way. He should no longer
be held in anxious suspension.
Our authority for the route envisaged
is to be found in the following cases where no judgments were
available or given for a variety
of reasons:
7.1
In
S V Mokela 2012(1) SACR 431 (SCA)
at paras 12 and 13
Bosielo JA stated:
”
[12]
I find it necessary to emphasise the importance of judicial officers
giving reasons for their decisions. This is important
and critical in
engendering and maintaining the confidence of the public in the
judicial system. People need to know that courts
do not act
arbitrarily but base their decisions on rational grounds. Of even
greater significance is that it is only fair to every
accused person
to know the reasons why a court has taken a particular decision,
particularly where such a decision has adverse
consequences for such
an accused person. The giving of reasons becomes even more critical
if not obligatory where one judicial
officer interferes with an order
or ruling made by another judicial officer. To my mind this underpins
the important principle
of fairness to the parties. I find it
un-judicial for a judicial officer to interfere with an order made by
another court, particularly
where such an order is based on the
exercise of a discretion, without giving any reasons therefore. In
Strategic
Liquor Services v Mvumbi NO & others
2010
(2) SA 92
(CC)
para
15 the Constitutional Court whilst dealing with a failure by a
judicial officer to give reasons for a judicial decision stated
that:
‘…
Failure
to supply them will usually be a grave lapse of duty, a breach of
litigants’ rights, and an impediment to the appeal
process…’.
See also
Botes
& another v Nedbank Ltd
1983
(3) SA 27
(A)
at
28.
[13]
Regarding the duty of judicial officers to give reasons for their
decisions it is instructive to have regard to what the RT
Hon Sir
Harry Gibbs GCMG, AC, KBE, the former Chief Justice of the high court
of Australia stated in the Australian Law Journal
1993 (67A) 494
where he said at 494:
‘…
The
citizens of a modern democracy – at any rate in Australia –
are not prepared to accept a decision simply because
it has been
pronounced, but rather are inclined to question and criticise any
exercise of authority, judicial or otherwise. In
such a society it is
of particular importance that the parties to litigation – and
the public – should be convinced
that justice has been done, or
at least that an honest, careful and conscientious effort has been
made to do justice, in any particular
case, and that the delivery of
reasons is part of the process which has that end in view…’.
See
also
Mphahlele
v First National Bank of SA Ltd
[1999]
ZACC 1
[1999] ZACC 1
; ;
1999
(2) SA 667
(CC) para 12;
Commissioner,
South African Revenue Service v Spring Investment 117 CC t/a Global
Investment
2011
(4) SA 551
(SCA)
paras 28-30.
7.2
In
S V Carter
2014 (1) SACR 517
(NCK)
at paras 3 and 4
this Court (Kgomo JP et Mamosebo AJ- then) stated:
“
[3]
The less said about the judgment of the regional magistrate, the
better. The judgment does not provide any factual background.
There
is no critical assessment of why the acts of the appellant
constituted attempted rape, and not rape for which he was
charged. No authority is cited for the drastic deviation from the
original charge. There is no explanation for rejecting the
complainant's
evidence that she was sexually penetrated. The
appellant did not testify, nor did he call any witness. The impact of
the appellant's
choices to remain silent in the face of implicatory
evidence is not dealt with. The magistrate, and indeed
the magistracy,
may do well to look at the following judgments
in this respect:
S
v Mokela
2012
(1) SACR 431
(SCA)
([2011]
ZASCA 166) at 436e – 437b (paras 12 and 13) and cased cited
therein;
Strategic
Liquor Services v Mvumbi NO and Others
2010 (2)
SA 92
(CC)
(2009 (10) BCLR 1046)
at 96B – 98A (paras 12 –
19) and cases there cited.
[4] It is not the
length of the judgment that matters, but whether the state has proved
its case beyond a reasonable doubt. This
the court establishes by
investigating whether all the elements of the crime an accused is
charged with have been proved. In casu
on the merits, if the recital
of the charges and verdict part are excluded, the body of
the judgment of the regional magistrate
is hardly a page long”.
[8]
THE APPELLANT’S
DEFENCE
In
his written plea-explanation, Exh “C”, the appellant
maintains,
inter alia,
that:
8.1 He acted in
self-defence and in defence of his family (“huismense”)
and property when he was attacked by the deceased
and his friends who
hurled missiles at his home;
8.2 His wife from whom
he was busy divorcing, T., summoned his intervention. He was inside
the house. She reported to him that the
deceased attacked her in
front of their house. On turning the corner of the house the deceased
struck him with a sealed bottle
of beer and thereby flattened him.
8.3 In his dazed state
he managed to disarm the deceased of his knife and stabbed him
indiscriminately, and cannot say where the
stab wounds were
inflicted.
8.4 He had no other
choice in doing what he did because the missiles rained on him, his
family and the property unabatedly. His
house and tuck-shop, run from
his premises, were damaged
.
[9]
THE STATE’S CASE
The
post-mortem report was conducted by Dr G.A. Isaacs on 13 May 2003,
the day after the deceased’s death. The doctor noted
the
following injuries and the cause of death (“Exh B”):
“
“
(Iv) That the
main post-mortem findings with respect to this body were:
1.
Single penetrating
stabwound left anterior chest entering between ribs 3 and 4.
2.
Left pneumothorax.
3.
1 cm stabwound in the
anterior wall of the right ventricle.
4.
3 different stabwounds
on the back.
(v) that, as a
result of my observations, a list of which follows I have decided:
a)
That the death has
occurred 7 days prior to my examination, and
b)
That the cause of
death is:
Hypovolaemic
shock due to stabwound in the heart
”
.
[10]
Messrs Itumeleng Pitso and
Robert Fish testified that during the evening of 06 May 2003 they,
the deceased (Lebogang) and Mr Daniel
(Nathaniel) Motaung(Mataung)
went to appellant’s place to buy bread as they were hungry. The
appellant and/or his wife run
a shebeen and a tuck-shop. There is a
difference in the evidence of these two witnesses (Daniel did not
testify) as to whether
deceased or Daniel purchased the two bottles
of (750 ml) of beer from the appellant’s wife (Mrs M. “T.”
B.) and
whether or how much they had drunk from the already opened
beers when a quarrel or misunderstanding ensued between the deceased
and Mrs B.
[11]
It is unclear what the source
of the conflict was. It was suggested that it had to do with the
price of bread, which was nevertheless
never bought, or perhaps the
unappreciated romantic attention that the deceased may have paid Mrs
B.. It cannot be established
for certain because Mrs B. did not
testify and when he did the appellant did not invoke any of these
suggestions on why he accosted
or was accosted by the deceased. What
is of significance is that the two men faced and spoke to each other.
The appellant produced
a huge knife. The deceased turned round and
fled, pursued by the appellant who stabbed him at least twice on his
back, they said.
But as already shown, the post-mortem recorded three
stabwounds on the back. The deceased collapsed and landed on his
back. According
to Mr Pitso the appellant then landed two or three
blows on the deceased’s chest which ended his life on that
spot.
[12]
Mr
Fish testified that after the deceased landed on his back he did not
witness what happened to him because he (Fish) fled or kept
away, for
whatever reason. He therefore did not see the deceased being stabbed
on the chest. However, in his police statement he
stated that he
witnessed the appellant stabbing the deceased once on his chest. When
this inconsistency was pointed out to him
he denied the accuracy of
the statement and blamed it on an incorrect interpretation. He gave
his statement to Supt Fillies in
Setswana for whom Capt Mona
interpreted into Afrikaans. On the ill-conceived application of Mr
Tobie Kotze, the appellant’s
attorney, the Magistrate ordered a
trial-within-a-trial for Mr Fish’s witness statement to be
admitted, which it was. The
propriety and futility of this exercise
will manifest later.
[13]
Ms
Sylvia Julies, the appellant’s neighbour, testified that during
the evening in question she was concerned about the whereabouts
of
her six-year old son who was not indoors. Out in the street looking
for him, she noticed that the deceased, who was unknown
to her, and
the appellant involved in a quarrel. The street, it was common cause,
was brightly lit and visibility was good. The
two were next to the
appellant’s small gate. She overheard the deceased telling the
appellant: “
As
ek iets sleg gesê het aan jou vrou, dan moet jy my verskoon
”.
Ms Julies gained the impression that they had smoked the peace pipe
because they walked together into the appellant’s
premises.
[14]
As
the appellant and the deceased approached the tuck-shop Ms Julies saw
Mrs Arends confronting the deceased and pummelled him with
clenched
fists. The deceased lifted his arms as if to retaliate (maybe even to
perry the blows). At that juncture the appellant
grabbed the deceased
by the shoulder. The deceased broke free and fled:
“
Goed
en wat is die volgende wat toe gebeur?==En beskuldigde was agter hom
en ek het gesien beskuldigde haal onder sy jas uit (hy
het ʼn
army jas aangehad) ʼn mes en hy steek op die oorledene.
Weet
u waar op die liggaam van die Oorledene is hy gesteek?==
Ek kan nie sê
nie, want die Oorledene – hy het hom van agter af gesteek. Ek
kan nie sê waar nie.
Hoeveel houe?== Ek
kan nie sè nie. Ek kan nie sê hoeveel houe nie, want toe
die Oorledene val toe sien ek dat die Beskuldige
sit bo-op die
Oorledene en hy steek aanhoudend. So ek kan nie sê hoeveel houe
nie.
En wat maak hy
toe?==En toe is daar iemand- ek weet nou nie is dit die Oorledene se
maatjies nie of iemand wat daar was, wat die
Beskuldige van die
Oorledene af getrek het.
Nou op die stadium
to die Beskuldige so oor die Oorledene buk, wat het hy gemaak?== Hy
het gesteek. Ek het gesien hy steek.
Kan u net vir ons
wys hoe het die Beskuldige gebuk? Watter posies was dit?==Dit was in
so ‘n posisie. (Onhoorbaar).
HOF
:Getuie
toon aan met die een knie op die grond gedeelte en dan steek
bewigings van bo na onder.
AANKLAER
:
En toe die Oorledene geval het, hoe het hy gaval?== Die Oorledene het
op sy rug gegaan val.
En wat was die
Oorledene se possisie op die stadium toe die Beskuldigde steek,
steekbewegings uit oefen?== Die possisie was so.
HOF
:
Getuie toon aan so ‘n keer beweging.
AANKLAER
:
U sê iemand het Beskuldigde van die Oorledene afgeruk en wat
gebeur toe verder?== En toe loop – die Oorledene het
seker net
- hy het opgestaan, hy het seker net so twee tree gegee, toe gaan val
hy daar hy gelê het oop in die yard.
Goed en toe hy gaan
val, wat gebeur verder?== Toe het hy daar gaan val. Toe skree sy
maatjies dat die Beskuldigde het hulle se maatjie
gesteek.
Sê gou vir die
hof tot op hierdie stadium weet u van enige klip gooiery wat daar
was?== Ja.
Goed, op watter
tydstip is klip gegooi?== Is nadat die Beskuldigde die Oorledene
gesteek het, wat die Oorledene daar lê, toe
het die Oorledene
se maatjies die Beskuldigde se huis gegooi met die klippe.
Sê gou vir die
hof op die stadium toe Beskuldigde die Oorledene steek, watter
beserings het die Beskuldigde opgedoen?== Nee.
Is hy ook beseer?==
Nee, ek het niks in daardie oomblik gesien nie. Ek het gesien toe die
ambulans en die polisie kom, toe is dit
mos nou lig. Ligte wat werk,
toe sien ek dat die Beskuldigde se gesig is vol bloed, maar ek kan
nou nie sê het hy ‘n
hou teen die kop of die voorkop nie.
Ek het daardie tyd gesien die Beskuldigde het ook bloed aan sy
voorkop.
So
dit is eers na die tyd wat u sien die Beskuldigde is beseer?== Ja, na
die klip gooiery”.
[15]
Ms
Julies’ observation is borne out by the J88 Medical report
compiled by Dr V.M. Jansen who treated the appellant on 07 May
2003,
a day after the incident. The Doctor recorded his injuries as
follows:
“
Fractures
or dislocations (if any):
1) (L) Oogbank –
gekneusde rooiperskleurig gehegde sny wond 3cm lank steke in.
2) (L) Oog –
geswel rooiperskleurig
3) (L) kant van nek
veelvuldige snywonde met 2 wonde elk een dermaton steek in.
4) (L) Oorskulp –
geswel – rooiperskleurige kneusplek.
5) agter (L) oor op
haarlyn kneusplek wat geswel is met klein snywond – droë
bloed waargeneem by wond – kneusplek
is rooiperskleurig.
By beserings is ±
12 ure oud en sny wonde (L) oogbank wat gekneus is veroorsaak deur ʼn
harde hou deur ʼn stompvoorwerp,
die besering by (L)
oorskulp en op (L) haarlyn veroorsaak deur ʼn harde hou deur ʼn
stompvoorwerp, besering van (L)
oorskulp en (L) haarlyn is
aaneenlopend klein snywondtjies in nek (L) veroorsaak deur ʼn
skerp voorwerp”.
[16]
Mr
Fish testified before Ms Julies. Mr Kotze put to him that the
deceased was armed with a home-crafted long knife, that is the
reason
why Fish and his companions did not intervene and stop the deceased
from attacking the appellant. Fish then responded that
he saw the
deceased produce what seemed like a butcher’s knife from
underneath a long coat (“lang jas”). Fish
went on to say
that he and his companions spent the whole day with the deceased and
did not notice the knife on him. Besides, says
Fish, the deceased
wore light clothes (“ligte klere”) underneath which he
could not conceal such a big knife. Still
on the knife theme; when he
testified in-chief
the
appellant
said the following about of the knife.
“
Die
mes wat u by die man afgevat het en waarmee u toe nou na hom gesteek
het, kan u sê hoe die mes gelyk het?== Ek kan nie
sê hoe
het die mes gelyk nie. Dit het vir my soos ‘n gemaakte ding
gelyk want dit is nie ‘n mes…(tussenkoms)
Het hy ‘n
skerp kant voor gehad?== Ja, hy het net ‘n skerp kant voor.
Soos ‘n lem?==
Ja, soos ‘n lem.
Blink?== Nee, soos
‘n ysterlem.
Het hy ‘n
handvatsel gehad?== Nee, hy het nie handvasel gehad nie. Net so
gemaakte ding gehad.
Kan u sê van
waste material daardie ding aan die agterkant was?== Dit is ook
staal.
Ook staal. Kan u sê
wat die kleur was?== Hy was vir my swart gewees.
En kan u min of meer
die lengte van die mes sê of die hele mes nou? As u nou moet
skat?== Dit is, hy is omtrent [so] lank.
Hof
:
Omtrent omgeveer amper wat – 50,60 sentimeter?== Ja, is so
ding. Hy is amper soos slaanding wat jy kan ‘n mens mee
slaan.”
[17]
It
was therefore common cause that the weapon was huge. It answers more
to a description of a sword or a sable. Exh “E”,
photos 4
and 6, depict the deceased lying on his back. He wears a
short-sleeved white shirt and a pair of blue long pants. I agree
with
Fish that it would have been impossible for the deceased to conceal
the described weapon underneath his clothes. If he did
he would not
have been able to sit for the entire day. The evidence shows that he
did sit at the appellant’s place. He was
up and down, talking
to the appellant’s wife.
THE APPELLANT’S
EVIDENCE
[18]
When
he testified the appellant at no stage mentions that the deceased
molested his wife or that she complained to him about anything
or
sought his intervention. In fact, he intimated that he was unaware of
her exact whereabouts during his fracas with the deceased.
[19]
The
appellant says the trouble started when he was in the house, resting.
His house was being stoned. He got out, unarmed, to investigate
who
the troublemakers were as he wanted to evict them (“ek wil nou
hierdie mense uitstel”). He also wanted to close
the small
gate. As he touched the gate he was struck with a bottle over the
head. The bottle shattered. He was dazed and crawled
through the
fence, apparently of the courtyard. The house is fenced off with a
perimeter fences (the main yard) and a courtyard
(the inner yard).
[20]
The
appellant says he noticed the deceased on the other side of the
fence. It must have been the courtyard fence because he says
it was
close to the door. The deceased was armed with the weapon already
described. He pulled the deceased through the fence into
the yard. He
continues the narative:
“
Goed
en wat gebeur toe ===
Toe
begin steek ek. Toe… steek ek maar net dat ek ʼn pad
kry nou.--- want die mense gooi aanmekaar met klippe.
Goed. Kan u onthou
hoeveel houe u gesteek het?===
Ek kan nie sê
hoeveel houe nie want toe ek met die klippe raak gegooi raak, toe
weet ek nie meer waar is ek nie. Toe moet
ek nou maar net
…(onvoltooid).
Goed.
Sê net vir die hof was u in die proses wat u gesteek het na die
man, was u raak gegooi ook met klippe?=== Hier op my
liggaam. En dit
het later vir my geklink soos bierbottels wat hulle ook teen die huis
gooi. En daar het klomp glase en goeterse
ook in daai tyd gelê”.
[21]
The
appellant maintains that when he started stabbing the deceased he
cannot say whether the deceased faced him or had turned his
back on
him. He could not see properly because one of his eyes was blinded by
the blood flowing from his head-injury. The missile-throwers
entered
the yard. He escaped into the toilet where he discarded the weapon,
which went missing and was never retrieved. The police
rescued him
from the angry mob. The deceased lay more or less where he had
stabbed him. He (the appellant) was hospitalised.
[22]
Another
vital piece of evidence emanates from a question by the Court seeking
elucidation:
“
Hof
:
Wat het u gepraat van toe u omdraai, wat van die omdraai?=== Toe ek
opstaan, die omdraai is wat hy nou geloop het, gehardloop
het.
Toe? Toe steek u nog
steeds?=== Ja, want die mense gooi klip u Edele. Ek kan mos nou nie
want ek het maar net daai tyd gedink ek
moet my nou net beskerm want
die mense gooi my nou dood en my huis en my kinders”.
Notably
from the above quoted passage, the appellant now recalls or concedes
that he stabbed the deceased on his back. This tallies
with evidence
of Pitso, Fish, Ms Julies and the results of the post-mortem report
already adverted to.
[23]
The
prosecutor concluded his cross-examination on this revealing note:
“
Meneer,
is dit nie waar omdat u en – u was kwaad vir die Oorledene
omdat hy en u vrou gestry het?=== Nee.
En toe het julle
woorde?=== Nee, ek het niks – ek weet niks van daai mense af
nie.
Want Sylvia, sy het
vir die hof gesê julle het gestry in die straat?=== Nee u
Edele.
En Sylvia sê
jy wou, die Oorledene wou vir Meide geslaan het en dit is toe wat jy
nou daar holla aankom en hom gryp?=== Nee
u Edele. Ek het wakker
geraak toe my vrou in die huis in kom hardloop. Dit is al”.
Mrs
B., the appellant’s wife, did not testify.
[24]
When it comes to
self-defence, the defence of others on property our courts have
enunciated
the following principles:
In
R v Patel
1959 (3) SA 121
(A)
the Appellat Division
held at 123 A-E:
“
Having
consulted the old writers cited in Gardiner and Lansdown, vol. 2 at
p. 1549 (6th ed.), I approve of the following passage
in that work:
'A
person has the same right to use force in the defence of another from
a threatened danger, as he would have to defend himself,
if he were
the person threatened - Moorman 2.3.5. (this should read 2.2.5.); van
der Linden 2.5.9.; Matthaeus 48.5.2.12.; von Quistorp
para. 245.'
The
general principles mentioned by WATERMEYER, C.J., in
R v
Attwood,
1946 AD 331
at p. 340, are that an accused is
entitled to an acquittal on the ground that he was acting in
self-defence if it appears as a
reasonable possibility on the
evidence -
'(a) That
he had been unlawfully attacked and had reasonable ground for
thinking that he was in danger of death or serious
injury. (Though
there may be cases of lawful self-defence where the accused was
originally the aggressor
R
v Ndara,
1955
(4) SA 182 (AD)
at 184 E.);
(b)
That
the means of self-defence which he used were not excessive in
relation to the danger;
(c)
That
the means he used were the only or least dangerous means whereby he
could have avoided the danger.'
In
considering these, the Court must beware of being an
arm-chair critic, and must take into account the exigencies of
the
occasion. Thus in
Union Government (Minister of Railways &
Harbours) v Buur,
1914 AD 273
at p. 286, INNES, J.A. (as he
then was) said
'Men
faced in moments of crisis with a choice of alternatives are not to
be judged as if they had had both time and opportunity
to weigh the
pros and cons. Allowance must be made for the circumstance of their
position’”.
[25]
As
noted earlier we have unfortunately been deprived of the benefit of
the Regional Magistrate’s insights as regards who he
believed
or disbelieved and, having been steeped in the atmosphere of the
trial, what the demeanor of the various witnesses on
the witness
stand was. However, when it comes to the assessment of the recorded
evidence is concerned we are just as in such a
good position as the
Magistrate himself to draw our own conclusions. We are therefore at
large to do so as if the Magistrate has
completely misdirected
himself. See:
R
v Dhlumayo and Another 1948 c(2) SA 677 (A)
at
706 where it was held at paras 10 and 11:
“
(10) There
may be a misdirection on fact by the trial Judge where the reasons
are either on their face unsatisfactory or where the
record shows
them to be such; there may be such a misdirection also where, though
the reasons as far as they go are satisfactory,
he is shown to have
overlooked other facts or probabilities.
(11) The appellate
court is then at large to disregard his findings on fact, even though
based on credibility, in whole or in part
according to the nature of
the misdirection and the circumstances of the particular case, and so
come to its own conclusion on
the matter”.
See
also:
R v Van Der Walt 2006(4) SA 382(A)
at
382H-383A; and
S V Van Wyk 2006(2) SACR 22 (NCD)
23G-24H (Tlaletsi J, Kgomo JP concurring) in which the presiding
judicial officers failed to provide any judgments apart from merely
returning a verdict of guilty.
[26]
For
me Ms Julies was an extremely good witness, better than the rest. Her
evidence reads very well. Her evidence was simple and
straightforward. She was very observant and her memory served her
very well, regard also being had to her police statement which
was
put in in an attempt to discredit Fish who testified before her. She
never contradicted herself.
[27]
Mr
Kotze, who seemed not to appreciate his duty to his client and the
Court, unjustifiably attempted to make Ms Julies out to be
a woman of
loose morals who was involved in a love relationship with a
“swart-man” or a man of a “swart-nasie”.
The
Magistrate never enquired from him why he was playing the race card
nor did he call Mr Kotze to order. The hurt that Ms Julies
felt is
poignant and must be reflected:
“
U
sien Beskuldigde sê vir my dat hy kan nie sê dat daar
inderdaad ‘n verhouding was tussen u en die Oorledene
nie, maar
wat hy weet is dat hy julle baie bymekaar gesien het in daardie tyd
en dat hy vermoed het dat daar moontlik ‘n
verhouding tussen
julle kon wees.=== Ek en wie?
U en die
Oorledene?=== Nee Meneer, daardie kant het Beskuldigde regtig ‘n
fout [gemaak]. My kinders is almal by die huis.
Ek het nog nooit
nadat ek en my man uit mekaar is, vir my aan mekaar gesteek weer met
‘n man nie en ek drink nie. Ek stel
in niks belang nie.
Beskuldigde het daardie kant ‘n fout. Ek ken nie daardie
Oorledene nie. Ek ken ook nie die persone wat
– sy maatjies wat
by hom is nie. Daardie kant het Beskuldigde eerlikwaar voor die
aangsig van die Here, daardie kant het
hy regtig ‘n fout
gemaak. Daar het jy ‘n fout began Hendrik [the name of the
appellant]. Ek het niemand. Soos ek nou
hier sit werk ek vir my en my
kindertjies. Ek is enkel. Ek is enkel. Ek het niemand.
Ek vra maar net vir
u omdat dit dalk ook ‘n rede kan wees hoekom u wegskram daarvan
dat u die Oorledene en sy vriende geken
het en hoekom hier gestaan
het in die verklaring Oorledene en sy vriende kom gereeld by
Beskuldigde se woning, jy weet?=== Nooit
nie Meneer. Ek sweer voor
die aangesig van die Here. Ek ken nie daardie mense nie en ek ook nie
met een van hulle ʼn verhouding
gehad nie. Ek sien hulle daardie
aand vir die eerste keer by Beskuldigde se huis.
Goed.===
Ek het getuies wat kan sê – ek meen of ek iemand aanhou.
Ek het niemand nie. Tot by my werkplek ook, hulle
weet ek het
niemand. Ek is net met my kinders”.
[28]
When
he testified the appellant vindicated Ms Julies. He said the deceased
did not have a love relationship with Ms Julies. In fact
he stated
that he did not know the deceased. Notwithstanding the appellant’s
categorical denial Mr Kotze valiantly tried
to hang a peg on her. Ms
Julies’ police statement does state that: “Oorledene en
sy vriende kom ook gereeld by beskuldigde
se woning”. Ms Julies
was not asked to explain this part of her statement. She should have.
What I have noticed is that Pisto,
Fish and the appellant are in
agreement that it was Pitso, Fish and Daniel Motaung’s first
visit to the appellant’s
place. The statement on this point is
clearly wrong. No adverse finding can follow from this. See generally
S
v Mafaladiso en Andere 2003(1) SACR 583 (SCA)
.
[29]
Pitso and
Fish corroborate each other on material aspects in respect of
occurancies prior to Ms Julies coming onto the scene. Their
evidence
is essentially consistent with that of Ms Julies where they observed
the events from the same vantage point. On some narrow
aspects, not
worth specifying, where there is some divergence in their evidence Ms
Julies’ ought to prevail. She was a star
witness, as I have
said. She was also independent from Pitso and Fish. She had no
relationship or attachment to the deceased. She
harboured no rancour
against the appellant. She says of him:
“
Wat
sal u sê wat was u verhouding of hoe het julle oor die
weggekom?=== Andries Barends is ‘n baie stil persoon. Ek
ken
hom op ‘n manier, hy het gewerk hier in die dorp en dan ry hy
met sy fiets altyd huis toe. En hy is ‘n persoon
wat altyd in
sy yard gewees het. Hy is nie ‘n person wat sommer rond geloop
het nie en hy is baie stil. Hy is nie ‘n
woelige person nie.
Sou u sê u en
hy al probleme met mekaar op gedoen op enige stadium?=== Nee.
Of
het julle goed oor die weg gekom?=== Nee, ek het nog nie probleme met
hom gehad nie. Ons het goed oor die weg gekom en ek het
vir hom
respek gehad en hy het vir my respek gehad”.
[30]
The
aspect where Fish states in his police statement that he saw one stab
wound being inflicted by the appellant on the deceased
but was
adamant in his evidence that he only witnessed the stabbing on his
back does not detract from the overall credibility of
his evidence.
He desisted from embellishing his evidence by exaggerating the case
against the appellant. Mr Kotze’s full-blown
exercise to have
Fish admit such evidence which is, ironically, implicatory of his
client to the point of embarking on a trial
within-a-trial is truly
mindboggling.
[31]
I
am therefore satisfied that the evidence of all the state witnesses,
bolstered by the admissions and documentary evidence, is
trustworthy
and credible and that the witnesses were honest. Their evidence was
accordingly correctly accepted. This must be so
because the
Magistrate in his explanatory note, at para 7 thereof (quoted at para
4 of this judgment), state that the contradiction
in the evidence of
the three state witnesses were minor and not material. Such evidence
inexorably points to the appellant not
having acted in any of the
grounds of defence he invoked.
[32]
Furthermore, and in any
event, the appellant has been shown beyond any doubt to have been an
unmitigated liar. He armed himself
with the sword-like weapon; put on
an army coat to conceal it with, drew the weapon when no danger was
lurking; pursued the unarmed
deceased who fled; stabbed his quarry
three times in the back; and when the hapless quarry landed on its
back he stooped over him
(not to conquer but to quench his
bloodthirst and plunged the weapon several times, once through the
heart, and killing him instantly;
he then fled and did away with the
weapon whose only purpose was meant to harm others. The Magistrate
therefore correctly rejected
his defence. See the magistrate’s
para 8 quoted at para 4 of this judgment.
[33]
The Magistrate, in the
premises, correctly convicted the appellant of murder with the direct
intent to do so (
dolus
directus
). What the
Magistrate should have added is that the murder was premeditated. To
then have sentenced the appellant to 8 years imprisonment
was a
travesty of justice and betrays him as not having had regard to
s51(1)
of the
Criminal Law Amendment Act, 105 of 1997
, and/or the
countless decided cases, particularly the Supreme Court of Appeal and
the Constitutional Court cases, on this legislation
pertaining to
minimum sentences. For the state not to have appealed the sentence is
heaping insult to injury on the deceased, his
family and society
generally. This brings the administration of justice into disrepute.
[34]
This bench has been asking in
numerous judgments since the year 2000 why such serious cases are
assigned to the regional court.
Ours have been a voice in the
wilderness. The office of the Director of Public Prosecutions must do
something about assigning chicken-feed
to the High Court and matters
of such serious magnitude to the Regional Court. The Society is
becoming restless and may soon run
out of patience.
THE
IRREGULAR TRIAL-WITHIN-A-TRIAL.
[35]
The ruling by the Regional
Magistrate in which he permitted that a trial within a trial be
conducted because there was a conflict
between the testimony of Mr
Fish in court and his witness statement deposed to before a police
officer, Col Fillies, is irregular
and unprocedural. This was not a
statement made by an accused person to a police officer or a
magistrate, pertaining to an admission
or a confession the
admissibility whereof was called into question as not having been
made freely or voluntarily, while not in
the accused’s sound or
sober senses or dictated to him or her or manufactured by the police.
See s217 of the Criminal Procedure
Act, 51 of 1977 (CPA).
[36]
The conflict in the police
statement and the oral evidence issue had everything to do with the
accuracy or reliability with which
Fish’s statement was
obtained and not its admissibility. The defence did not object to its
admission into evidence but passively
permitted its acceptance. What
is ironic is that the statement of Fish aggravates the case against
the appellant by corroborating
the evidence of Pitso and Ms Julies
that the appellant stabbed the deceased, not only in the back, but in
the chest as well. What
Mr Kotze wanted to achieve is difficult to
fathom.
[37]
The Magistrate should have
asked Mr Kotze for his authority in bringing the application. What
should have happened is that Mr Kotze
should have cross-examined Fish
on the discrepancy and leave it to the state to call the police
officer who obtained the statement
and his interpreter. If the
prosecutor was not disposed to doing so the defence could call them
when it presents its case. What
has happened is that the Magistrate
has unwittingly ruled on the credibility of Mr Fish (by believing the
police witnesses and
disbelieving Fish) before he completed his
evidence because he allowed Fish to be cross-examined after the
ruling. The credibility
finding also came before the accused
testified and therefore before all the evidence in the case was
adduced or presented. This
was highly irregular and the magistrate
placed himself in an invidious position when it came to the
consideration of the conspectus
of the entire case.
[38]
Useful guidance may be sought
in
S V Mafaladiso
(supra) at 584H-585D where the headnote (in English) reads:
“
The juridical
approach to contradictions between two witnesses and
contradictions between the
versions of the same witness (such as, inter alia, between her
or his viva voce evidence and a previous
statement) is, in principle
(even if not in degree), identical. Indeed, in neither case is the
aim to prove which of the versions
is correct, but to satisfy oneself
that the witness could err, either because of a defective
recollection or because of dishonesty.
The mere fact that it is
evident that there are self-contradictions must be approached
with caution by a court. Firstly, it
must be carefully determined
what the witnesses actually meant to say on each occasion, in order
to determine whether there is
an actual contradiction and what is the
precise nature thereof. In this regard the adjudicator of fact must
keep in mind that a
previous statement is not taken down by means of
cross-examination, that there may be language and cultural
differences between
the witness and the person taking down the
statement which can stand in the way of what precisely was meant, and
that the
person giving the statement is seldom, if ever, asked by the
police officer to explain their statement in detail. Secondly, it
must be kept in mind that not every error by a witness and not every
contradiction or deviation affects the credibility of a witness.
Non-material deviations are not necessarily relevant. Thirdly, the
contradictory versions must be considered and evaluated on a holistic
basis. The circumstances under which the versions were made, the
proven reasons for the contradictions, the actual effect of the
contradictions with regard to the reliability and credibility of the
witness, the question whether the witness was given a sufficient
opportunity to explain the contradictions - and the quality of the
explanations - and the connection between the contradictions
and
the rest of the witness' evidence, amongst other factors, to be taken
into consideration and weighed up. Lastly, there is the
final task of
the trial Judge, namely to weigh up the previous statement against
the viva voce evidence, to consider all the evidence
and to decide
whether it is reliable or not and to decide whether the truth has
been told, despite any shortcomings”.
See
also cases cited in the
Mafaladiso
judgment, which also warn
that presiding judicial officers must be astute to ensure that police
statements are not abused by defence
counsel.
[39]
The Magistrate probably did
not have any regard to the criteria upon which leave to appeal should
be granted. The appeal is “dead
in the water”. See the
advice that Mr Justice Yacoob gives the Magistracy in
Shinga
V The State: State V O’Connel 2007(2) SACR 28 (CC)
at 52C-H para 53 whereat he states:
“
It
is important to emphasize the judicial character of the task
conferred upon magistrates, in particular, in determining whether
to
grant leave to appeal. Although the magistrate will have convicted
and sentenced the accused, the magistrate is called
upon to
consider carefully whether another court may reach a different
conclusion. This requires a careful analysis of both the
facts and
the law that have underpinned the conviction, and a consideration of
the possibility that another court may differ either
in relation to
the facts or the law or both. This is a task that has been carried
out by High Court judges for many years, but
it is new to
magistrates under the s 309B procedure. It is a judicial task of
some delicacy and expertise. It should be approached
on the footing
of intellectual humility and integrity, neither over-zealously
endorsing the ineluctable correctness of the decision
that has been
reached, nor over-anxiously referring decisions that are indubitably
correct to an appellate Court”.
ORDER
The
appeal fails and is dismissed.
_______________________
F
DIALE KGOMO
JUDGE
PRESIDENT
Northern
Cape Division, Kimberley
I
concur
_______________________
D
I MATLAPENG
ACTING
JUDGE
High
Court of South Africa
Northern
Cape Division, Kimberley
On behalf of the
Applicant
:
Mr
D Van Tonder
(Legal Aid South
Africa, Kimberley)
On behalf of the
Respondent:
Adv.
K Kgatwe
(Director Public
Prosecutor, Kimberley)